Perez v. State

Cite as 2016 Ark. 298SUPREME COURT OF ARKANSAS
No. CR-16-557
Opinion Delivered: September 8, 2016
JUAN PEREZ
APPELLANT
V. MOTION TO DISMISS APPEAL AS
MOOT
STATE OF ARKANSAS
APPELLEE
MOTION DENIED WITHOUT
PREJUDICE.
PER CURIAM
Attorney Phillip McGough was appointed by the Miller County Circuit Court to
represent appellant Juan Perez in the appeal of a conviction for rape. On June 21, 2016,
counsel filed a “Motion to Dismiss Appeal as Moot.” In his motion, counsel states that on
May 27, 2016, he mailed a notice of appeal and designation of record to the Miller County
Circuit Clerk and to court reporter Tabbetha A. Kopech; that on June 1, 2016, Kopech
emailed him to inform him that Perez had died; and that on June 7, 2016, Miller County
Prosecuting Attorney Stephanie Black telephoned him and told him that Perez had died on
May 4, 2016. Counsel contends that, because Perez has died, this court should dismiss the
appeal as moot.
Rule 1(c) of the Arkansas Rules of Appellate Procedure–Criminal states that, “[u]pon
the death of a defendant, the appeal shall not abate. The appeal shall continue on the relation
of a representative party as provided in Ark. R. Civ. P. 25(a).” See also Dowdy v. State, 2015
Cite as 2016 Ark. 298Ark. 35. Subsection (c) was amended in 2004 to permit an appeal to continue following the
death of a defendant. Before the rule was amended,
no appeal could be taken after the death of a defendant, and any appeal taken
during a defendant’s life abated upon his death. This situation could create
collateral consequences to the estate and heirs of a defendant. For example,
assume that a defendant convicted of homicide is the beneficiary of an
insurance policy insuring the life of the homicide victim. If the defendant dies
while the conviction is on appeal, the continuation of the appeal is the only
way for the defendant’s estate to challenge the conviction. As a party in privity
with the defendant, the estate would be collaterally estopped from relitigating
the defendant’s guilt in a subsequent civil proceeding to determine the
disposition of the insurance proceeds. See Zinger v. Terrell, 336 Ark. 423, 985
S.W. 2d 737 (1999) (murder conviction bars defendant from relitigating guilt
in subsequent civil proceeding). Similarly, the judgment of conviction may
order a defendant to pay a substantial fine or restitution. This potential claim
against the defendant’s estate could not be contested by the estate if the
opportunity to challenge the conviction is extinguished by the death of the
defendant.
Ark. R. App. P.–Crim.1(c) reptr. nn. to 2004 amendment.
Accordingly, the status of this criminal appeal is now governed by Arkansas
Rule of Civil Procedure 25(a)(1):
If a party dies and the claim is not thereby extinguished, the Court may order
substitution of the proper parties. The motion for substitution may be made
by any party or by the successors or representatives of the deceased party, and
such substitution may be ordered without notice or upon such notice as the
Court may require. Unless the motion for substitution is made not later than
ninety (90) days after the death is suggested upon the record by the service
upon the parties of a statement of the fact of death, the action may be dismissed
as to the deceased party.
Ark. R. Civ. P. 25(a)(1).
Motion denied without prejudice.
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